NLRB Chairman’s Final Days Signal an End to More than His Term

Labor & Employment @lert

Date: December 20, 2017

Key Notes:

The NLRB has:

  • overturned its 2004 standard for weighing the legality of workplace rules and handbook policies;
  • reversed its 2016 ruling on employers’ duty to bargain with unions regarding mid-term changes to employer policies;
  • rejected its 2011 “micro-unit” standard;
  • reverted back to the pre-2015 joint employment test; and
  • requested feedback regarding “quickie election” representation regulations.

As National Labor Relations Board Chairman Philip Miscimarra’s term was ending on December 16, 2017, the full five-member Board, led by a Republican majority, filled Miscimarra’s final days with a flurry of decisions impacting unionized workplaces, from establishing a new balancing test assessing workplace rules to soliciting feedback on “quickie elections.”

Workplace Rules and Employee Handbook Policies

In The Boeing Company, the Board modified its standard assessing workplace rules that prohibit the exercise of employees’ Section 7 rights under the National Labor Relations Act. It established a new balancing test to determine whether workplace rules unlawfully interfere with employees’ Section 7 rights, overturning the 2004 Lutheran Heritage standard finding a policy illegal if employees could “reasonably construe” it to bar them from exercising their rights. Now, when faced with a facially neutral rule or handbook provision, the Board will consider the nature and extent of a challenged rule’s potential impact on NLRA rights and the employer’s legitimate justifications associated with the rule.

To provide additional clarity in the balancing test’s application, the Board set forth three types of employee workplace rules:

  • Lawful rules, which cannot be interpreted to interfere with workers’ rights because business interests outweigh any interference.
  • Rules requiring individualized scrutiny because they may be legal in some cases, depending on their application.
  • Unlawful rules, which are always illegal because business interests do not outweigh any interference with employees’ rights.
Employer Duty to Bargain with Unions

In Raytheon Network Centric Systems, the Board reversed its 2016 DuPont ruling that businesses must bargain with unions before implementing revisions to terms and conditions of employment even if they have a history of making similar changes. In this case, the Board sided with the employer who adjusted its employee health care benefits without first bargaining with the union over the changes. The Board determined that because the unilateral modifications to the health care benefits were a continuation of the employer’s past practice of making similar changes at the same time each year, the employer did not have to bargain with the union over the unilateral decision. Reverting back to its 1964 Shell Oil decision, the Board once again holds that a revision to terms and conditions of employment is not a “change” if it is consistent with past practices.

Micro-Unit Standard

The Board also reversed its stance on permitting “micro-units” of employees to unionize. In PCC Structurals Inc., the Board overturned its 2011 Specialty Healthcare decision, which raised the bar for employers to challenge a union’s narrow bargaining unit. The Board expressed that the Specialty Healthcare standard gave unions too much power in determining the makeup of bargaining units. Under the previous standard, employers were required to show that the employees they wanted to include in a particular bargaining unit shared an “overwhelming community of interest” with the proposed unit. In reverting back to the pre-Specialty Healthcare standard, the determination of a bargaining unit now depends on whether the petitioned-for employees share a community of interest “sufficiently distinct” from excluded employees to justify their own unit.

Joint Employer Standard

As we previously reported, the expanded joint employer test came to a halt in the Hy-Brand Industrial Contractors Ltd. and Brandt Construction Co. cases, as the Board overturned the 2015 Browning-Ferris decision. In returning to the pre-Browning test, joint employer status once again requires proof that alleged joint employers have actually exercised joint control over essential employment terms (rather than merely having a “reserved” right to exercise control), the control is “direct and immediate,” and joint employer status will not result from control that is “limited and routine.”

Quickie Election Request for Information

On December 13, 2017, the Board published a Request for Information regarding the representation regulations found at 29 CFR parts 101 and 101. The amendments, which came into effect on April 14, 2015, significantly reduced the time between filing a representation petition and the subsequent election from about six weeks to an average of 14 to 28 days. Although the adoption of the rules was intended to simplify the procedures, the shortened timeframe limited employers’ abilities to address unionization issues with employees. During the response period, which is December 13, 2017 through February 12, 2018, interested parties can weigh in on the following questions:

  • Should the 2014 Election Rule be retained without change?
  • Should the 2014 Election Rule be retained with modifications? If so, what should be modified?
  • Should the 2014 Election Rule be rescinded? If so, should the Board revert to the Representation Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should it make changes to the prior Representation Election Regulations? If the Board should make changes to the prior Representation Election Regulations, what should be changed?

For more information, please contact:

Eric S. Clark

Candice S. Thomas

or any member of our Labor & Employment group.

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